U.S.A. - Bermuda Tax Convention (Section 10) Regulations 1995
Title 6
Laws of Bermuda Item 4(a)
1989 Revision 1
BERMUDA STATUTORY INSTRUMENT
BR 2/1996
U.S.A.- BERMUDA TAX CONVENTION (SECTION 10)
REGULATIONS 1995
[made under sections 10 and 13 of the U.S.A.- Bermuda Tax Convention
Act 1986 [title 6 item 4] and brought into operation on 19 January 1996]
ARRANGEMENT OF REGULATIONS
1 Citation
2 Interpretation
3 Application of these
Regulations
PART I
OBTAINING INFORMATION BY
EXAMINATION
4 Examination orders
5 Examiner
6 Attendance of, and
production of documents
by, witnesses
7 Examination on oath
8 Refusal of person to
attend, be sworn, etc.
9 Time and place for
examination
10 Recording of proceedings
11 Legal representation
12 Objection to questions
13 Fees and expenses
14 Residuary power to
regulate proceedings
15 Examiner's report
PART II
OBTAINING INFORMATION BY
DOCUMENT
16 Authentication of
documents
SCHEDULE
Title 6
Laws of Bermuda Item 4(a)
1989 Revision 7
Citation
1 These Regulations may be cited as the U.S.A.-Bermuda Tax
Convention (Section 10) Regulations 1995.
Interpretation
2 In these Regulations—
"the Act" means the U.S.A.-Bermuda Tax Convention Act 1986;
"examination" means a hearing for the purpose of obtaining a
deposition pursuant to section 10(1)(a);
"the Minister" means the Minister of Finance;
"section" means section of the Act;
"serve" has the meaning assigned to it by section 8;
"the Court" means the Supreme Court.
Application of these Regulations
3 These Regulations apply where the Minister intends to obtain
information under section 10.
PART I
OBTAINING INFORMATION BY EXAMINATION
Examination orders
4 (1) Where an examination is to be held, the Minister shall make
an order under this regulation (an "examination order").
(2) An examination order—
(a) shall designate the person who is to conduct the
examination (the "examiner");
(b) shall specify the person or persons who is or who are to
make a deposition (a "witness" or "witnesses");
(c) shall describe, in such general or specific terms as the
Minister deems fit, the information which is to be
obtained in the form of a witness's deposition;
(d) shall require the examiner to send to the Minister as
soon as may be a full report on the examination, when
completed; and
(e) may, in addition, contain such directions as the Minister
deems it necessary or expedient for him to give so that
the purposes of the examination may be fulfilled.
U.S.A. - BERMUDA TAX CONVENTION (SECTION 10)
REGULATIONS 1995
8 1989 Revision
(3) An examination order affecting a prospective witness shall
be served on him but otherwise shall not be published.
Examiner
5 An examiner shall be a person considered by the Minister to be
qualified and competent to conduct an examination.
Attendance of, and production of documents by, witnesses
6 An examiner may by written notice require a witness to attend at
an examination, and to produce any document required from him in
connection with the examination if it is in his possession, custody or
control.
Examination on oath
7 An examiner may for the purposes of an examination take
evidence from a witness upon oath and for that purpose may administer
an oath or affirmation.
Refusal of person to attend, be sworn, etc.
8 (1) A person who, having been required under regulation 6 to
attend at an examination, refuses or fails to attend or, having so
attended, refuses or fails to be sworn, or to answer any question or
produce any document that he is properly asked to answer or to
produce, for the purpose of the examination, is guilty of an offence and
may be proceeded against and, if convicted, punished, as provided in
subsection (4) of section 9.
(2) Notwithstanding paragraph (1), an examiner may apply to
the Court for an order requiring a person whom the Court finds to be in
breach of that paragraph to attend before the examiner, or to be sworn,
or to answer a question or produce a document for the purposes of the
examination, as the case may be, and the Court may make an order
accordingly.
(3) An order made under paragraph (2) may contain a direction
that the person against whom the order is made shall pay any costs
occasioned by his refusal or failure.
(4) A person who wilfully disobeys a direction given to him
under paragraph (3) is guilty of contempt of court.
Time and place for examination
9 An examiner shall give to the Minister a notice appointing the
place and time at which, subject to any alteration that the examiner may
make on the application of the Minister or any party, the examination
shall take place; and the Minister shall notify all parties accordingly.
Title 6
Laws of Bermuda Item 4(a)
1989 Revision 7
Recording of proceedings
10 Subject to any directions to the contrary in an examination
order, an examiner may appoint a shorthand or verbatim reporter to
record the proceedings at the examination.
Legal representation
11 A witness at an examination may at his own expense have legal
representation at the examination.
Objection to questions
12 (1) If a person objects to being questioned, or to answering a
particular question, at an examination, he may refuse to answer but
shall state the grounds for his objection; and those grounds and any
answer that he gives under objection shall be set out in his deposition or
a statement annexed to it.
(2) If an examiner determines that it is desirable that an
objection made under paragraph (1) should be overridden for the
purposes of the examination, he may refer the objection to the Court
under paragraph (2) of regulation 8, and the Court shall decide the issue.
(3) An examiner shall set forth in any reference that he makes
to the Court under paragraph (2) his own opinion on the issue.
(4) If on a reference to the Court under paragraph (2) the Court
decides the issue in favour of the person objecting, it shall order any
answer that he may have given under objection in the examination to be
stricken from the record of the examination.
Fees and expenses
13 (1) An examiner shall be paid such fees and expenses as the
Minister may approve.
(2) A witness shall be paid such witness expenses as the
examiner may order.
(3) A shorthand or verbatim reporter appointed under
regulation 10 shall be paid such fees as the examiner may order.
(4) All fees and expenses payable under this regulation shall be
paid by the U.S. Government.
Residuary power to regulate proceedings
14 Subject to these Regulations, an examiner may regulate the
proceedings at an examination as he sees fit.
U.S.A. - BERMUDA TAX CONVENTION (SECTION 10)
REGULATIONS 1995
8 1989 Revision
Examiner's report
15 (1) An examiner shall conduct his examination with all
despatch and shall, as soon as the examination is concluded, send to the
Minister—
(a) the deposition of every witness; and
(b) the report called for by sub-paragraph (d) of paragraph
(2) of regulation 4.
(2) The deposition referred to in paragraph (1), in relation to a
witness, is the written record of the matters deposed to by him, including
any document or exhibit forming part of those matters; and that record
shall be authenticated—
(a) by the witness himself (if he is willing to authenticate it);
and
(b) by the shorthand or verbatim reporter (if there was one);
and
(c) by the examiner,
by being signed and dated by each of them in witness of its correctness.
PART II
OBTAINING INFORMATION BY DOCUMENT
Authentication of documents
16 (1) Where information sought from a person in a notice served
upon him under section 5 is in the form of an original document, or a
copy of an original document, in his possession, custody or control, the
Minister may include in the notice a requirement that he authenticate
the document or copy by making an affidavit in the form set forth in the
Schedule, or in a form as near to that form as the circumstances permit;
and he shall comply with any such requirement.
(2) A document to which such an affidavit relates must be
exhibited to the affidavit and be identified by a certificate signed by the
person making the affidavit.
SCHEDULE (Regulation 16)
AFFIDAVIT WITH RESPECT TO DOCUMENTS OF A
REGULARLY CONDUCTED BUSINESS ACTIVITY
Title 6
Laws of Bermuda Item 4(a)
1989 Revision 7
NOTE: This Affidavit must be executed by the custodian of records or
some other person who can explain the record-keeping procedure.
I ........................................ of ..............................................................
(address)
in Bermuda (Swear) (Affirm) (On Penalty of Perjury) (On My Oath) as
follows:
(1) I am employed by .......................................................................
(Name of business, activity or person from
................................. ...........
whom documents are sought).
(2) ....................................................................................................
(Name of business, activity, or person from whom documents
....................... engages in the regular business of ...................................
are sought). (Describe business or
...........................................
activity).
(3) My official title is ....................................................................
(4) My duties and responsibilities include: (describe relationship to
books and records, i.e., custodian of books and records, or supervision
over books and records, etc.).
(5) As a result of my duties and responsibilities I have knowledge of
the manner in which the books and records are kept.
(6) The attached documents are original (or true copies of original)
documents which I obtained from the custody and control of
(Name of
............................................................................................. and are all
business, activity, or person from which documents are sought).
the documents, or true copies of all the documents in the possession or
custody of .................................... and referred to in the Notice issued by
the Minister of Finance and dated ...........................................................
(7) The attached documents are: ......................................................
(Description of documents: e.g.,
U.S.A. - BERMUDA TAX CONVENTION (SECTION 10)
REGULATIONS 1995
8 1989 Revision
................................................................................................................
"Ledger of the checking account of John Doe for the Month of July,
1986").
(8) It is a regular practice of this business to make and keep ...........
......................................................................... in the following manner
(Description of documents)
................................................................................................................
(Describe manner in which documents or categories of documents are
......................................................
made or kept).
(9) It is the regular practice of this business to base its records upon
information transmitted by persons with knowledge of the matters
recorded, who are acting in the course of the regularly conducted
business activity.
(10) It is the regular practice of this business to check the
correctness of documents of the kind exhibited hereto.
(11) It is the regular practice of this business to rely on records of the
kind exhibited hereto.
(12) The entries on the documents exhibited hereto were made by
persons with knowledge of the matters recorded, or from information
transmitted by persons with such knowledge.
(13) The persons making the entries on the documents or
transmitting the information for purposes of recording it were acting in
the course of regularly conducted business or activity.
(14) The entries on these documents were made at or near the time of
the matters recorded, pursuant to a systematic and routine procedure
for the conduct of this business.
(15) The documents exhibited hereto and marked ..........................
were kept in the course of the regular activity of this business.
Title 6
Laws of Bermuda Item 4(a)
1989 Revision 7
.............................................
(Date)
...............................................
(Signature)
Sworn or Affirmed before
me a ...................................................................
notary public, judicial officer, etc.
this ............... day of ...................................... 19........
